Balkrishna S. Joshi v. State of Madhya Bharat — 1956 DIGILAW 116 (MP)

JUDGEMENT : NEVASKAR, J. This is a petition under Article 226 of the Constitution. The petitioner was formerly in the employment of the former Rajagarh State as a Sub-Inspector of Police. Subsequent to the integration of that State into Madhya Bharat his services were transferred to Madhya Bharat under the terms of the covenant some time in 1948. 2. According to the petitioner by the order of Inspector General of Police, Madhya Bharat dated 27-5-1950 he was absorbed as Sub-Inspector of Police in Madhya Bharat. Subsequent thereto he was posted at the Police Station Tai. While he was there he was on 3-8-1951 served with a charge sheet containing various charges of misconduct and irregularities said to have been committed by him in the course of his duties. These charges were later inquired into by the District Superintendent of Police who submitted a report to the Deputy Inspector General of Police Ujjain who examined the report and past record of service of the petitioner and by his order dated 18-12-1951 retrenched the petitioner with effect from 1-11-1951. 3. Under categories 2 and 7 of the Retrenchment Rules as revised by notification of the Finance Department No. 180 VII G (EM) dated 9-7-1949 for consistent bad record and being surplus to the needs of the department. The Petitioners grievance is that the aforesaid order though in terms is one of retrenchment under categories 2 and 7 of the Retrenchment Rules is in fact and in substance one of dismissal or removal from service within the meaning of Article 311 of the Constitution and that for this reason the order is bad in law and contrary to requirements of Article 311 of the Constitution firstly on the ground that the same is made by an authority subordinate to that by which he was appointed and secondly on the ground that no notice is given to the petitioner to show cause against the action proposed to be taken against him. 4. In the alternative it is contended that the Retrenchment Rules could not be invoked at random after the petitioners services are absorbed and no determination of the strength of cadres or their postings had been decided upon. The petitioner in the petition raised other points also but the aforesaid points are the only ones which are pressed during the course of argument. The petitioner in the petition raised other points also but the aforesaid points are the only ones which are pressed during the course of argument. The petitioner on these grounds prays for the quashing of the impugned order and for any further and incidental order. 5. In the return submitted on behalf of the opponent it is contended that the petitioner was neither removed nor dismissed within the meaning of those terms as used in Article 311 of the Constitution but was in fact and in substance merely retrenched from service in pursuance of the scheme of the Retrenchment Rules 1949 with full benefits including those of proportionate pension. Discontinuance from service under these conditions does not amount either to removal or dismissal within the meaning of those terms in Article 311 of the Constitution. In the alternative and without prejudice to the aforesaid contention it is denied that the petitioner was absorbed in the Madhya Bharat service by order of Inspector General of Police dated 27-5-1950. 6. The order dated 27-5-1950 copy whereof is produced as annexture (A) is a provisional seniority list and that the petitioner was taken purely on provisional basis. 7. It was denied that the order of retrenchment of the petitioner was as a, measure of punishment. It was an order of retrenchment in respect of which it was relevant to take into account the whole of service record of the petitioner. The applicability of Retrenchment Rules was asserted and that of Police manual was denied Neither Art. 311 of the Constitution nor Art. 320 applied to the case of the petitioner according to the opponent. It is therefore prayed that the petition be rejected with costs. 8. In view of these respective contentions the questions which arise for consideration are:- (1) Whether the petitioner was absorbed in the service of the State by order dated 27-5-50. (2) Whether the order annexture C dated 10-12-1951 amounts to an order of removal or dismissal under Article 311 of the Constitution. 9. In respect of the first point the learned Advocate General during the course of his argument took two positions. He firstly asserted that the order in question is a provisional seniority list of the Sub-Inspectors taken up in Madhya Bharat service on a purely provisional basis. 9. In respect of the first point the learned Advocate General during the course of his argument took two positions. He firstly asserted that the order in question is a provisional seniority list of the Sub-Inspectors taken up in Madhya Bharat service on a purely provisional basis. Secondly he said that it is not shown that the Inspector General of Police was authorised to pass orders regarding permanent absorption of the sub-Inspectors of police nor had petitioner anv right to be permanently absorbed without the final structure of Police being decided. 10. Reading the order as it stands it is difficult to read the order as a provisional seniority list having nothing to do with absorption of the petitioner in the services of the state. 11. The order is in the following terms and purports to be passed by the Inspector General of Police:- "The following Officers are absorbed as Sub-Inspector of Police in Madhya Bharat Police Force:- 1. B. S. Joshi 2. Syed Ayubali." 12. Information of this order was given to the petitioner through the office of D.S.P. District Ratlam within which District he was at the time posted. No material has been produced along with the return in the light of which any other construction can be placed upon the order than the one that is plain from its wording. 13. As regards the second position it is not plain from the return that the authority of the Inspector General of Police to pass the order dated 27-5-1950 was questioned. Moreover no materials are placed to indicate that the order is beyond the power he possessed. Learned Advocate General no doubt contended that the final authority to determine the final structure of police force and the question of final absorption of a member of the Police force rested with the Government under the covenant and it is not asserted that the Government had delegated that power to the Inspector General of Police. 14. But even as regards this it has not been shown that on the material date i. e. 27-5-1950 the Inspector General of Police was not duly authorised to do what he did, in the absence of materials to suggest that the final structure had not been decided upon by the Government prior to that date. 15. 14. But even as regards this it has not been shown that on the material date i. e. 27-5-1950 the Inspector General of Police was not duly authorised to do what he did, in the absence of materials to suggest that the final structure had not been decided upon by the Government prior to that date. 15. It is reasonable to assume that a responsible officer like the Inspector General of Police must have acted within the scope of his authority. 16. I am therefore inclined to read the order dated 27-5-1950 regarding petitioners absorption in the service of Madhya Bharat to be not provisional and not without authority. The petitioner therefore is entitled to invoke the aid of Article 311 of the Constitution. 17. The next question is. does the order dated 10-12-51 amount to dismissal or removal within the meaning of the term used in that Article. 18. The learned Advocate General contends in this respect that the terms of the order clearly indicate that it is not a dismissal or removal within the meaning of Article 311 of the Constitution. The order clearly indicates that the petitioner was retrenched from service under categories 2 and 7 of the Retrenchment Rules as revised by Notification of Finance Department No. 180 VII GEM dated 9-7-1949 for consistent bad record and being surplus to requirement. 19. He contends that the petitioner is not deprived of his right to the benefits of leave and compensation to which he is entitled for the service already rendered by him under the rules. 20. He relied upon the decision reported in Munshiram v. State of Madhya Bharat, AIR 1954 Madh. B. 54 (A) in support of the proposition that where the petitioners removal was in pursuance of the policy of retrenchment under the Retrenchment Rules with benefits of proportionate and other benefits it is not a removal to which Article 311 of the Constitution applies. 21. It may be said at the outset in considering this argument of the learned Advocate General that in Munshirams case it was pointed out that the petitioner in that case had not been absorbed in the integrated services of Madhya Bharat. In the present case on the construction I put on the order dated 27-5-1950 the petitioner was absorbed in the integrated services of Madhya Bharat. 22. In the present case on the construction I put on the order dated 27-5-1950 the petitioner was absorbed in the integrated services of Madhya Bharat. 22. This distinction will have to be borne in mind in considering the nature and the effect of the order dated 10-12-1951. 23. In the present case the circumstances surrounding the order dated 10-12-1951 were that the procedure followed by the petitioner in connection with the investigation of Crime No. 24 of 1950 under S. 454/380 IPC while he was posted at Ringnod was considered by the DSP Ratlam to be very irregular and highly objectionable. He was thereupon given a charge sheet dated 3-8-51 and 13-8-51 containing five charges. After enquiry the D. S. P. reported that the charges against him were substantially proved and according to him the petitioner had proved himself to be an officer who is unfit to be retained further in the department. He was stated to be incompetent unscrupulous and unreliable. The D.S.P. recommended his being removed from his appointment at an early date. Deputy Inspector General of Police agreed with the findings of the D.S.P. He also took into consideration his previous two black deeds of the pre-integration period On all these facts he directed his retrenchment with effect from 1-11-1951 by his aforesaid order dated 10-12-1951. 24. From above stated facts it cannot be doubted that the removal of the petitioner which is said to be his retrenchment was motivated by his alleged very irregular and highly objectionable procedure followed by him in the investigation of the aforesaid case arid on findings by the D. S. P. on enquiry regarding the charges levelled against him pertaining to that investigation and confirmed by the Deputy Inspector-General of Police although previous black-deeds were also taken into account. 25. It therefore follows that if the action of retrenchment is tantamount to removal it is one which implies that the petitioner is in some manner blame-worthy or deficient that is to say that he has been guilty of some misconduct or is lacking in ability or capacity to discharge his duties as he should do. The action of removal taken in such circumstances is founded and justified on the ground personal to the petitioner as explained in Shymlal v. State of Uttar Pradesh in AIR 1954 SC 369 (B). 26. The action of removal taken in such circumstances is founded and justified on the ground personal to the petitioner as explained in Shymlal v. State of Uttar Pradesh in AIR 1954 SC 369 (B). 26. There is certainly an element of charge or imputation in this case. 27. The only question which then remains to be seen is whether the actual action taken against him amounts to removal. 28. The actual order certainly uses the word retrenchment and the power sought to be exercised is one under the Retrenchment Rules 1949. But since I held that the petitioner was duly absorbed no question of exercise of power under the rules in pursuance of a policy of integration of services of various integration states arises. 29. This gives rise to a peculiar position. While on the one hand due to the terms and effect of the order the petitioner does become entitled to certain advantages of proportionate pension, and leave etc., yet in substance his service is terminated on certain grounds of misconduct and inefficiency. What then should be the effect of such an order. 30. My view in this matter is that it is the substance of the order and neither the form nor some of the incidents of the order that are to be looked to in determining whether a Civil Servant is or is not entitled to the protection afforded to him under Article 311 of the Constitution. The petitioner was charged with inefficiency and misconduct. These charges were found against him in some kind of enquiry and the order of the termination of his service, after his absorption in the service of the State, followed as the direct and stated result of the findings. 31. His previous record of two black-deeds were also taken into account. 32. There was therefore a clear case of imputation or charge against him which might conceivably be controverted or explained by the petitioner. The order of retrenchment therefore though attached with the benefits of proportionate pension and leave etc., is in substance one of removal. 31. His previous record of two black-deeds were also taken into account. 32. There was therefore a clear case of imputation or charge against him which might conceivably be controverted or explained by the petitioner. The order of retrenchment therefore though attached with the benefits of proportionate pension and leave etc., is in substance one of removal. The incident of the above sort though has to be taken into account in determining whether a particular termination of service amounts to removal or not it is not the sole and decisive test and every case of termination of service has to be judged on the basis of the facts and circumstances peculiar to it and the incidents attaching to it to determine whether it amounts to removal within the meaning of Article 311 of the Constitution. 33. Neither Shyamlals case nor Munshirams case have direct application to this case. 34. I therefore hold that the petitioner was absorbed in the service of Madhya Bharat and his services were terminated by an order which in substance is tantamount to removal within the meaning of Article 311 of the Constitution. It is not denied that no notice was given to him as required by Article 311 of the Constitution. 35. The order of the Deputy Inspector General of Police of which copy is produced at Ex. C dated ...-12-1951 and mentioned by the petitioner dated 10-12-1951 is hereby quashed. 36. Under the circumstances of the case the parties to bear their costs. Counsels fees to be taxed at Rs. 50/-. 37. SAMVATSAR, J. :- I agree.